Appeal, No. 242 | Pa. | Jun 28, 1962
Opinion by
On May 24, 1961, Rose Johnson, the widow of Bishop Sherrod Johnson,
The complaint averred: (1) that Eose Johnson is the widow of Bishop Johnson by whom she bore twelve children; (2) that, during his lifetime, Bishop Johnson acquired certain real, personal and mixed property; (3) that Bishop Johnson created the Trustees as an unincorporated body prior to 1948 but in 1948 the Trustees was incorporated; (4) that Bishop Johnson was the “sole proprietor and owner” and was, in fact, the body known as the Trustees, other incorporators of the Trastees being “menial help” in the Bishop’s household; (5) that all the property acquired through the use of the Trustees’ name was Bishop Johnson’s property and that he used the Trustees’ name in the acquisition of title to real, personal and mixed property “for the purpose of avoiding his legal responsibility” to his wife; (6) that the true owner of all such property is now the Estate of Bishop Johnson; (7) “that the said Bishop Johnson . . . died on or about February 22, 1961, seized
To this complaint the Trustees filed preliminary objections averring, inter alia, lack of jurisdiction of the subject matter in the court of common pleas. The court below concluded that exclusive jurisdiction of the sub
Prom an examination of the complaint it is most difficult to ascertain with any degree of certainty the exact theory upon which Rose Johnson proceeds. Under one view of the complaint it would appear that Rose Johnson alleges that her late husband had conveyed without consideration certain assets, personal and real, in an attempt to defeat her marital rights. Under another view of the complaint it would appear that she alleges all of these assets were actually owned by her husband at the time of his death and held either in his own name or in the name of the Trustees, the latter being actually a strawman or nominee. Under either view, the orphans’ court, not the court of common pleas, has exclusive jurisdiction of the subject matter of the complaint.
If it is Rose Johnson’s theory that her late husband during his lifetime had conveyed these assets retaining a power of appointment by will or a power of revocation or consumption over the principal and that such conveyance or conveyances should be treated as a testamentary disposition so far as she is concerned, then clearly the orphans’ court has exclusive jurisdiction: Act of April 24, 1947, P. L. 100, §11, 20 PS §301.11.
If it is Rose Johnson’s theory that the personal assets referred to in the complaint were actually in the name of her husband or in the name of the Trustees as his nominee at the time of death, then clearly the or
If it is Rose Johnson’s theory, as expressly averred in the complaint, that Bishop Johnson died seized of the real property, then clearly the orphans’ court which has exclusive jurisdiction over the administration and distribution of the real property of the estate of the decedent would be the only appropriate forum: Orphans’ Court Act of 1951, supra, §301(1).
Lastly, if it is Rose Johnson’s contention that, while actual title to the real estate was in the Trustees’ name, the real ownership of such realty was in the estate of the decedent, then an action could not be instituted for the reconveyance of such realty by Rose Johnson or her personal representative but would have to be instituted by the personal representatives of the decedent’s estate
Whatever rights Rose Johnson, as distinguished from the rights of the personal representatives of the decedent’s estate, might have must be adjudicated in the Orphans’ Court. The provisions of the Orphans’ Court Act of 1951, supra, and the rationale of two recent decisions of this Court (Strassner v. Trainor, 403 Pa. 602" court="Pa." date_filed="1961-05-22" href="https://app.midpage.ai/document/strassner-v-trainor-6257988?utm_source=webapp" opinion_id="6257988">403 Pa. 602, 170 A. 2d 582; Stemple v. Carson, 366 Pa. 392, 77 A. 2d 438) clearly dictate this result.
Decree affirmed. Costs on appellant.
During the pendency of this action, i.e., the summer of 1961, Rose Johnson died. At the time of oral argument her death had not been suggested of record and no personal representative had been substituted. We will treat the matter as though such suggestion had been made of record and a personal representative substituted.
Emphasis supplied.
In view of the failure of the complaint to state when the conveyances took place, the applicability of the Act of 1947, supra, and the Act of February 17, 1956, P. L. (1955) 1073, §4, 20 PS §301.11 will depend on whether the conveyances took place after the effective dates of either Act.
Prior to the filing of the instant complaint and after a renunciation of her right to administer by Bose Johnson, letters of administration in Bishop Johnson’s estate were issued by the Register of Wills of Philadelphia County to Amos Johnson and William P. Johnson.